Episode 70 -Can Non-Record Lawyers Participate in the Depositions of their Non-Party Clients?

Episode #70

In this episode, Jim Garrity brings clarity to a quandary experienced by many litigators: Can the non-record lawyers of non-party deponents show up at the deposition and actively participate? By objecting, by asking questions, by giving directions to the court reporter, or engaging in colloquy with record counsel? As always, the cases upon which this episode is based are listed in the show notes below. If it looks like our show notes are cut off wherever you get your podcast, click through to our podcast homepage, or to the page where this episode is hosted, to see the complete list. In these show notes there are four cases, three articles, and five citations to rules.

SHOW NOTES

State ex rel. Naes v. Hart, 548 S.W.2d 870, 871 (Mo. App. 1977) (non-record lawyer may not participate in deposition on behalf of non-party deponent other than to confer and object on matters of privilege or self-incrimination only)

Thompson v. Mather, 70 A.D.3d 1436, 1437, 894 N.Y.S.2d 671 (2010) (non-record lawyer for non-party positioned opponents forbidden from objecting to, or otherwise participating in, videotaped pretrial depositions)

St. Louis v. Hrustich, 35 Misc. 3d 1232(A), 953 N.Y.S.2d 554 (Sup. Ct. 2012) (“generally, though a non-party witness has the right to be represented by counsel at a deposition, counsel may not object or otherwise participate in the deposition and less necessary to invoke a testimonial privilege”)

Sciara v. Surgical Assocs. of W. New York, P.C., 104 A.D.3d 1256, 1257, 961 N.Y.S.2d 640 (2013) (“… It is axiomatic that counsel for nonparty witness is not permitted to object or otherwise participate in a trial”)

May I Please Say Something? Horowitz, D., New York State Bar Journal, 83 AUG N. Y. St. B. J. 82 (July/Aug 2011) (opinion piece on prohibition against deposition participation by non-record counsel on behalf of non-party deponents)

No Role Means No Role, Horowitz, D., New York State Bar Journal, 85 MAY N. Y. St. B. J. 16 (May 2013) (opinion piece on prohibition against deposition participation by non-record counsel on behalf of non-party deponents)

More Than a Potted Plant: Five Tips for a Non-Party Deponents’ Counsel, Schaeffer, J., Practice Points, ABA Committee on Pretrial Practice and Procedure (Nov. 29, 2019) https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2019/more-than-a-potted-plant-five-tips-for-nonparty-deponents-counsel/

Texas Rule of Civil Procedure 199.5(d) (providing that deposition examinations shall proceed as an examination at trial)

New York Civil Practice Law and Rules 3113(c) (providing that deposition examinations shall proceed as an examination at trial)

Fed. R. Civ. P. 30(d)(3)(a) (allowing non-party deponent to terminate deposition being conducted in bad faith)

Fed. R. Civ. P. 26(c)(1) (authorizing non-party deponent to seek protective order on the terms and conditions under which deposition will be conducted)